United States v. Robbins
| Decision Date | 31 August 1964 |
| Docket Number | No. LR-64-C-100.,LR-64-C-100. |
| Citation | 235 F. Supp. 353 |
| Parties | UNITED STATES of America, Plaintiff, v. David ROBBINS et al., Defendants. |
| Court | U.S. District Court — Eastern District of Arkansas |
Norman E. Bayles, Trial Atty., Tax Division, Dept. of Justice, Washington, D. C., for United States.
Richard A. Williams, of Wright, Lindsey, Jennings, Lester & Shults, Little Rock, Ark., for defendants.
This is an action brought by the United States against David Robbins, Beatrice Robbins, his wife, and certain other defendants, pursuant to sections 7402 and 7403 of the Internal Revenue Code of 1954, to establish federal income tax liabilities and to foreclose asserted liens for such taxes. The Government's claims are based upon jeopardy assessments made by the Commissioner of Internal Revenue in June and July of the current year. It is alleged in the complaint that Mr. and Mrs. Robbins are indebted to the Government in the overall sum of $434,142.99, including fraud penalties and accrued interest; that the Government is entitled to judgment against them in that sum, to a foreclosure of its liens upon property and interests in property owned by Mr. Robbins, including his partnership interest in the University Plaza Shopping Center in the City of Little Rock, Arkansas, and to appropriate additional and incidental equitable relief.
The suit was commenced on July 25, 1964, and all of the defendants, except Mr. and Mrs. Robbins, were served with process in the normal course of business. Immediate service on Mr. and Mrs. Robbins could not be had since at the time of the institution of the suit they were physically within the Republic of Mexico, and did not leave that nation until August 12.
On or about August 18 Mr. and Mrs. Robbins came to Little Rock and representatives of the Internal Revenue Service learned of their presence here. Mr. and Mrs. Robbins, particularly the former, were placed under surveillance. On the afternoon of August 25 the Government filed herein an application for the issuance of a writ of ne exeat republica directed against Mr. Robbins. The substance of the application and of the affidavit filed in support thereof was that Robbins was in the course of liquidating all of his assets in the United States and of transferring those assets or their proceeds to Mexico, and that unless the writ should issue Robbins would leave the United States thus defeating or seriously jeopardizing the enforcement and collection of the Government's tax liens.
The application was presented to the Court ex parte, and the writ was issued directing the Marshal to require bail of Robbins in the sum of $200,000, and to commit Robbins to jail in default of such bail. The issuance of the writ in a case of this kind is expressly authorized by section 7402(a) of the Internal Revenue Code.
While the writ which was issued was absolute and final in form, it was in fact a temporary writ. In this connection the Marshal was directed to produce Robbins before the Court at 11:00 A. M. on August 26 for a hearing, and also to bring Robbins before the Court during the evening of August 25 for an informal hearing or conference should Robbins desire the same.
Robbins was apprehended by deputy marshals at a Little Rock motel around 6:00 P.M. on the 25th and not surprisingly was unable to furnish immediately bail in the sum demanded. He contacted his attorneys and was brought before the Court about 8:30 P.M. As a result of a conference which the Court then held, Robbins was released for the night on his own recognizance with the understanding that he would not undertake to leave Little Rock, and that he would remain under the surveillance of Special Agents of the Intelligence Division of the federal Internal Revenue Service.
Prior to the hearing which was held on the 26th Robbins filed a motion to quash the writ on the ground that he did not intend to leave the country, that the affidavit supporting the application for the writ was insufficient, and that the hearing bond required of him was grossly excessive. The hearing was held in due course. The Government called as a witness Special Agent Richard L. Trattner of Los Angeles, California, and also examined Mr. Robbins under oath. Robbins called no witnesses.
To the extent that a judgment or decree of a court of equity must operate upon the person of a human being if it is to be effective, it is clear that such person can render such judgment or decree nugatory or ineffective if he can put himself beyond the reach of the court, as by departing from the jurisdiction of the court. It was to prevent such a frustration of their in personam jurisdiction that the courts of equity devised the common law writ of ne exeat.
Although it has been used infrequently, federal equity courts have had the power to issue the writ since the earliest days of the Republic.
Section 5 of the Act of March 2, 1793, 1 Stat., c. 22, p. 334, provided for the issuance of the writ "by any judge of the supreme court in cases where they might be granted by the supreme or a circuit court; (a) but no writ of ne exeat shall be granted unless a suit in equity be commenced, and satisfactory proof shall be made to the court or judge granting the same, that the defendant designs quickly to depart from the United States * * *." The power of the Supreme Court, as a court, and the power of the Circuit Courts, as courts, to issue the writ are to be found in section 14 of the original Judiciary Act of 1789, Act of September 24, 1789, c. 20, 1 Stat. 81.
Section 717 of the Revised Statutes of the United States, which was brought forward into the Judicial Code of 1911 as section 261 thereof, 28 U.S.C.A. (1940 Ed. § 376), provided that the writ might be issued by a Supreme Court Justice in any case in which the Supreme Court might issue it, and that it might be issued by a district judge in any case in which the district court might issue it. The original limitations that the writ was to be issued only in a pending equity suit and only upon a showing of a design on the part of the defendant "quickly to depart" from the United States were retained.
The function of the writ was described by the Supreme Court of the United States in the following language in the case of D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208-209, 52 S.Ct. 322, 323-324, 76 L.Ed. 704:
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United States v. Shaheen
...contended that the burden of proof was on the Government to establish that the writ should remain in effect. United States v. Robbins, 235 F. Supp. 353, 357 (E.D.Ark.1964). However, we are not persuaded that the record before us demonstrates any prejudice to appellant because his evidence w......
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Gredone v. Gredone
...of the court's power to give effective in personam relief due to its loss of control over the defendant's person. [United States v. Robbins, 235 F.Supp. 353, 356 (E.D.Ark.1964). See National Automobile and Casualty Ins. Co. v. Queck, 1 Ariz.App. 595, 405 P.2d 905, 910 (1965); see also Elkay......
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U.S. v. Ernst & Whinney
...authorized by Sec. 7402(a) must only be issued in extraordinary cases as dictated by common law) (Stevens, J.); United States v. Robbins, 235 F.Supp. 353, 357 (E.D.Ark.1964) (same). See also, 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2942 (1973) (general discussion of eq......
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